Ruppe v. Glos , 251 Ill. 80 ( 1911 )

Mr. Justice Cooke

delivered the opinion of the court:

This is the second appeal in this case. The opinion on the first appeal is reported in 243 111. 414. Upon being remanded to the superior court on the first appeal it was heard upon the same bill, and as there is no certificate of evidence here, reference is had to the former opinion for a statement of the allegations contained in the bill. The decree entered on this hearing contained the same findings as the former decree, and in addition found that appellee derived his title by mesne conveyances from the govern-ment of the United States, all of which were duly recorded in Cook county, Illinois; that the government patented the premises to one Hubbard on October 1, 1839, and that by mesne conveyances from Hubbard to appellee the government title became and was vested in appellee. Appellants urge as reasons for a reversal of this decree, that costs were erroneously taxed against D. Arnold, one of the appellants ; that there are no allegations in the bill to support the findings in the decree that appellee derived his title by mesne conveyances from the government, and that the findings as to appellee’s title are the same as those found to have been insufficient in the former appeal.

The ground for the first objection is, that after the filing of the original bill herein, and on January 15, 1909, Arnold was defaulted and an order pro confesso entered against him; that thereafter, on April 3, 1909, and at a subsequent term of the superior court, leave was given appellee to amend his bill by showing that prior to the commencement of the suit a tender had been made to Arnold in excess of the amount due him, the contention being, that the order pro confesso entered against Arnold was a final adjudication of the suit as to him, and that appellee did not have the right, at a subsequent term, to so amend his bill as to materially affect the interests of Arnold. Where a pro confesso order has been entered, the effect of thereafter filing an amended bill or an amendment to the bill is to vacate such order, and the defendants theretofore defaulted are admitted to answer as though an order pro confesso had not been entered. (Gibson v. Rees, 50 Ill. 383.) Upon the filing of this amendment the order defaulting .Arnold was set aside and a rule entered requiring him to answer the amended bill, and upon his failing to do so he was again defaulted. Where a defendant is once brought into court he is required to be present and take notice of every step taken in the progress of the cause. (Mix v. Beach, 46 Ill. 311.) Appellant Arnold was compelled to take notice of the fact that by leave of court appellee might malee any amendment necessary to sustain the cause of action for which his suit was intended to be brought. By the service of summons he was brought into court, where it was his duty to be and appear until the case was disposed of, and he was entitled to no further notice or service under the practice in this State. (Niehoff v. People, 171 Ill. 243.) The court did not err in assessing costs against appellant Arnold.

As to the second contention, appellee’s bill alleges that he is the fee simple owner of the premises, and that he acquired title to the same by deed dated May 6, 1892, from Annie Lehmann and others, and the decree finds 'that he is such fee simple owner, and also that he acquired his title by mesne conveyances from the government of the United States, which was in addition to the finding in the former decree. As we said in Ruppe v. Glos, 243 Ill. 414: “It would not have been necessary to a finding in the decree that appellee’s grantors had title by regular chain from the government, to have found and recited all the conveyances and proof offered in evidence to pr.ove that title, but if appellee’s title depended upon proof of record title in his grantors, it was necessary that the decree contain some recital showing that the court heard proof upon the subject and of its conclusion drawn from that proof.” This decree finds from the proof presented that appellee derived his title from the government and that all of the conveyances in the chain of title were duly recorded in Cook county. The fact that the decree, in addition, finds also that appellee acquired his title "from Annie Lehmann by deed of May 6, 1892, and that at the date of said deed the premises were, and have since been, unimproved, unoccupied and vacant, and that for more than nine successive years thereafter appellee had paid all taxes and assessments levied or assessed against said premises under claim and color of title made in good faith and acquired as aforesaid, does not, as appellants claim, vitiate the finding of the decree that appellee derived his title from the government. It is apparent from the findings in the decree that the conveyance from Annie Lehmann to appellee was one of the conveyances in the chain of title from the government, and the finding that the premises, at the time of the making of that deed, were, and since have been, vacant and unoccupied, and that appellee had paid all taxes and assessments levied upon the premises under claim and color of title, in no respect destroys or impairs the finding that appellee was the fee simple owner of the premises by virtue of his title derived by mesne conveyances from the government.

The decree of the superior court removing the tax deed of appellants as a cloud upon the title of appellee is af- • firmed.

Decree affirmed.